Adrianus Gregorius Marie Bakker v WorkCover Queensland and ors

[2008] NSWDDT 37

Dust Diseases Tribunal

of New South Wales

CITATION:	Adrianus Gregorius Marie Bakker v WorkCover Queensland and ors [2008] NSWDDT 37
PARTIES:	Adrianus Gregorius Marie Bakker (plaintiff) WorkCover Queensland (first defendant) Amaca Pty Ltd (second defendant) Wallaby Grip Ltd (third defendant) Wallaby Grip (BAE) Pty Ltd (in liquidation) (fourth defendant)
MATTER NUMBER(S):	7042 of 2007
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	ARPD :- Damages - subsequent injury
DATES OF HEARING:	10 and 11 March 2008, 14 and 15 July 2008, 19 and 21 November 2008
DATE OF JUDGMENT:	5 December 2008
LEGAL REPRESENTATIVES:	Mr G F Little SC with Mr S Tzouganatos instructed by Turner Freeman appeared for the plaintiff Mr G M Watson SC instructed by Fergusons Lawyers, Holman Webb Brisbane and Middletons appeared for the defendants

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number 7042 of 2007

Adrianus Gregorius Marie Bakker

v

WorkCover Queensland

and

Amaca Pty Ltd

and

Wallaby Grip Ltd

and

Wallaby Grip (BAE) Pty Limited (in liquidation)

5 December 2008

CURTIS J

JUDGMENT

1. The plaintiff, Adrianus Gregorius Marie Bakker, was born in Rotterdam, Holland on 26 May 1935. He migrated to Australia in December of 1953 and in 1961 commenced work as a lagger. He was employed by Barker and Co Pty Ltd from 1961 until 1974 and by ISA Insulations Pty Ltd from 1974 until 1981.

2. As a result of inhaling asbestos dust and fibre in the course of his work, Mr Bakker has developed severe asbestos related pleural disease. WorkCover Queensland is sued as successor to the liabilities of Barker and Co Pty Ltd and ISA Insulations Pty Ltd, both of which are deregistered companies. The remaining defendants are sued as manufacturers of the asbestos products used by Mr Bakker in his work.

3. Each defendant admits liability, and the only issue is the assessment of damages. This is complicated, because after Mr Bakker developed symptoms referable to his compensable disease, he suffered two strokes which have severely disabled him.

The medical history

4. Mr Bakker's asbestos-related pleural disease first caused him symptoms in December 2005, when he noticed breathlessness while walking his dog. Before that time Mr Bakker was not in good health. He had suffered a serious back injury in 1986 in consequence of which he was unable to work and was in receipt of an invalid pension. In February 2005, he purchased a hospital bed to accommodate his back symptoms. I do not accept his evidence that the bed was purchased to relieve breathing problems.

5. From some time in 2000, Mr Bakker was under the care of a Dr Paul Watson, cardiologist. He suffered from severe aortic stenosis and atrial fibrillation, with symptoms of dizziness and light-headedness. A defective heart valve was replaced on 4 August 2005, although the surgery was not entirely successful. The artificial replacement valve leaked at the place where it was connected to the artery.

6. On 22 February 2006, Mr Bakker experienced severe breathlessness and was admitted to Prince Charles Hospital. On 6 March 2006 he underwent a right video assisted thoracoscopy, drainage of pleural effusion and talc pleurodesis. He was discharged on 10 March 2006.

7. As the medical evidence in this trial unfolded, it became apparent that the defendants’ contention that this episode of breathlessness, and the pleural effusion, resulted from cardiac problems rather than asbestos-related pleural disease, was unsustainable. It is a contention incompatible with the composition of the pleural fluid drained from Mr Bakker's lung.

8. After his discharge from hospital, Mr Bakker remained under the care of Dr Paul Zimmerman, the Medical Director of the Prince Charles Hospital thoracic medicine program. On 20 July 2006, Dr Zimmerman measured his vital capacity as 1.75 litres. This was 41 per cent of predicted, although an x-ray showed a significant amount of pleural fluid present. This fluid was expected to resolve, with consequential improvement in vital capacity.

9. On 26 July 2006, Dr Zimmerman conducted a six minute walk test. Mr Bakker was able to walk 465m in six minutes. His oxygen levels dropped from 98 to 91 per cent, recovering in 4 and a half minutes. This drop was described by Dr Zimmerman as "significant", but not very severe. He said that at that level Mr Bakker's haemoglobin would still be 90 per cent filled with oxygen. Dr Zimmerman agreed that these results were "pretty good" for a man of Mr Bakker's age, and compatible with independent living.

10. On 5 August 2006 in Prince Charles Hospital, Mr Bakker underwent an operation to repair his leaking aortic valve. During the course of the surgery he suffered a stroke. In October 2006 he was discharged from the intensive care unit and transferred to the rehabilitation unit. On 16 November 2006 he suffered a further stroke. The effect of these strokes upon him has been devastating.

The contribution of the stroke to Mr Bakker's ventilatory impairment

11. One immediate consequence of Mr Bakker’s strokes was that he was, for a long period, artificially ventilated. This caused a rapid deterioration of the muscles associated with breathing. Because of Mr Bakker's age, and the other features of the stroke, he will never recover that loss of muscle tone. The artificial ventilation also caused areas of Mr Bakker's lungs to collapse and consolidate into bands of fibrous scarring. Those areas affected will not recover. Yet another problem was that while he was on the ventilator, Mr Bakker suffered infections which caused pleural effusions and further pleural thickening.

12. Mr Bakker's vital capacity was compromised in any event by the fact that he has undergone two sternotomies. Dr Zimmerman says that one sternotomy alone may cause a 10 per cent loss of ventilatory capacity because of the mechanical effect of this procedure upon the chest wall.

13. Mr Bakker's ventilatory capacity was measured by Dr Zimmerman on 27 September 2007 and found to be 1.07 litres, 0.68 litres lower than the measurement taken before the strokes.

14. Dr Zimmerman is of the opinion that Mr Bakker's 60 per cent diminution in predicted vital capacity before the strokes could be subdivided 40 per cent due to his asbestos-related pleural disease, 10 per cent due to the residual pleural fluid, and 10 per cent due to the previous sternotomy. He conceded there may be some very small contribution from cardiomegaly. (Dr Hossack, a cardiologist qualified by the plaintiff, says that the pre-existing chronic atrial fibrillation contributes 10 per cent to Mr Bakker's breathlessness.)

15. Dr Zimmerman is of the further opinion that a 0.74 litre diminution in vital capacity measured after the strokes may be attributed as to 20 per cent (0.15 litres) to the asbestos-related disease and 80 per cent to the other factors discussed above. The loss of 0.15 litres represents an additional 3.4 per cent additional impairment if expressed as a percentage of Mr Bakker's predicted vital capacity of 4.33 litres. By this process of reasoning, Dr Zimmerman assesses the present contribution by Mr Bakker's asbestos-related pleural disease to his ventilatory impairment as 45 per cent. (In these calculations, Dr Zimmerman mistakenly proceeds upon the basis that the reduction in vital capacity was 0.74 litres, rather than the correct figure of 0.68. This small discrepancy is not significant.)

16. Dr J McEvoy, a respiratory physician qualified by the defendants, agreed that before the stroke Mr Bakker's asbestos-related disease had significantly impaired his lung function. He assessed the proportionate contribution of that disease to the present total impairment of lung function as 25 per cent, the other factors contributing 75 per cent. Dr McEvoy says that the lung function tests performed after the strokes are probably unreliable.

17. The evidence does not lead me to actual persuasion that the opinion of either Dr Zimmerman or Dr McEvoy as to contribution should be preferred. I do not think it matters. Whether the tortious contribution to Mr Bakker's respiratory disability be 25 per cent or 45 per cent, that contribution is a material cause of his present breathlessness, although he would be breathless to a fairly marked degree in any event.

18. Dr Roger Allen, a physician qualified by the plaintiff's solicitors, in a report of 12 December 2007, estimated that asbestos disease was causing approximately 80 per cent of Mr Bakker's total restrictive lung defect and that this was the predominant cause of his breathlessness. In his opinion, the remaining 20 per cent was probably due to a combination of the effect of his cardiac and thoracic surgery. I discount this opinion because it does not address the significant contribution made by the stroke and the consequences of ventilation.

The effect of the stroke upon Mr Bakker generally

19. As a result of the stroke, Mr Bakker has left-sided facial droop, and loss of strength and control in his left arm and leg. He uses a four-pronged walking stick or walking frame to assist with his balance and movement. He is unable to swallow and is fed through a percutaneous endoscopic gastrostomy tube (PEG), which leads directly to his stomach. He requires the assistance of Mrs Bakker in washing and dressing. Mrs Bakker attends to his medication and prepares his food, which is hung on an intravenous pole for slow delivery through the PEG.

20. Because of the effect of the stroke upon Mr Bakker's motor functions, his movements require great effort. He can only walk 10 steps before becoming short of breath. He is breathless after talking for long periods, or even laughing. He has panic attacks, and worries about not being able to breathe. He cannot leave home without the use of a wheelchair or a mobile frame.

Life expectancy

21. Dr McEvoy estimates life expectancy as anywhere between six months and three years, the main adverse factors being the likelihood of a further stroke or, equally likely, a pulmonary infection in his severely compromised lungs.

22. Dr Zimmerman says that life expectancy is likely to be reduced, although he does not put a figure on this. The reasons for this reduction are related to the stroke, with pharyngeal dysfunction, immobility, and deconditioning, especially that of the respiratory muscles. In the opinion of Dr Zimmerman, Mr Bakker's asbestos-related disease will be a contributing cause to Mr Bakker's death, particularly if this occurs after respiratory infection.

23. In a report of 26 January 2007, Dr Roger Allen expressed the opinion that Mr Bakker's life expectancy would be measured in terms of one or two years, or possibly even significantly less. He noted that Mr Bakker was extremely unwell and incapable of taking anything orally. He thought that Mr Bakker was at increased risk of aspirating and dying from pneumonia, which could be caused even by the aspiration of saliva.

24. In a report of 13 February 2007 Dr Allen again said that Mr Bakker would not survive much longer than a few years, a major threat to his life being the possibility of aspiration of saliva, or liquids and fluids if he decides to eat. (It is here relevant to note that in recent times Mr Bakker has been taking soup orally.)

25. In a further report of 12 December 2007 Dr Allen said that Mr Bakker appeared much more healthy. He nevertheless said that life expectancy was reduced to five or six years because of a marked reduction in lung function. In expressing this opinion Dr Allen does not appear to have considered the alternative possible causes of death which he addressed in his earlier reports, nor the possibility of a further stroke or cardiac event. Dr Hossack said that if Mr Bakker only had the problems of post aortic valve replacement and atrial fibrillation, his chances of surviving a further 10 years were only 70 per cent.

26. It is impossible to assign a measure of probability to the circumstance that Mr Bakker's life will be cut short by his asbestos-related disease. My award of general damages will take into account this possibility, together with a contingency for loss of expectation of life.

General damages

27. This is a difficult case. In his report of 13 February 2007 Dr Roger Allen said that "to extricate the asbestos disease component from the totality of his illness, I believe is beyond the wisdom of Solomon". Dr Allen did, however, venture an opinion that Mr Bakker’s asbestos disease would account roughly for about one third of his total burden of illness, the remainder being due to the effects of his stroke and heart disease, combined with depression. In expressing this opinion, Dr Allen did not take into account the effect of the stroke on Mr Bakker’s lung function.

28. Although I accept the evidence of Dr Zimmerman and Dr McEvoy that less than one half of Mr Bakker's present breathlessness is caused by his compensable disease, that circumstance must be balanced against the probability that, because of the progressive nature of the disease, his total breathlessness will increase, and the further observation that from he who has little more is taken.

29. I assess general damages in the sum of $115,000. I allow interest on $50,000 at 2 per cent for three years, $3000.

Personal Care

30. A claim is made for past and future personal care and assistance. There are several reasons why this claim must be rejected.

31. There is no evidence that Mr Bakker was in need of, or received, personal care after discharge from hospital in March 2006 until his stroke on 5 August 2006. Neither he nor Mrs Bakker gave evidence to that effect. Records of the Prince Charles Hospital indicate that upon discharge Mr Bakker was able to attend to the activities of daily living. Both Dr Zimmerman and Dr McEvoy said that before the stroke Mr Bakker was capable of caring for himself.

32. In respect of the period after 5 August 2006, it may be accepted that, given the progressive nature of his compensable disease, Mr Bakker would probably have required some care and assistance in the future had he not suffered the stroke. The claim must however be disallowed for the reasons discussed in Jobling v Associated Dairies Ltd (1981) 3 WLR 155 and Faulkner v Keffalinos (1971) 45 ALJR 80.

33. Mr Bakker's present and future need for personal care has not been caused by his asbestos-related disease, but rather by his stroke.

34. The object of damages is to provide "that a sum of money which will put the party who has been injured or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation" (per Lord Blackburn, Livingston v Rawyards Coal Co (1880) 5 App Cas 25 (HL) at 39).

35. If Mr Bakker had not suffered his stroke this matter would have proceeded upon the basis that a sum of money should be provided to fund future care and assistance for Mr Bakker. That sum would have been subject to a deduction against the contingency that Mr Bakker might not otherwise need that care; or may die prematurely. The deduction is made because the future is unknown and the court must do the best it can.

36. The court however should not speculate when it knows. Had Mr Bakker not suffered his asbestos-related disease, he would presently require extensive personal care and assistance. I am not persuaded that additional care is required because Mr Bakker's compensable disease may have progressed to that stage when care and assistance would otherwise have been required. Mr Bakker is “in the same position as he would have been in if he had not sustained the wrong”.

Domestic services

37. Mr Bakker was disabled by a back injury from 1986. There is no evidence that he carried out any maintenance tasks upon his home before his stroke other than washing windows. This is light work, and I am not persuaded that it was beyond Mr Bakker’s abilities before his stroke. The medical evidence is silent on this matter.

38. Mr Bakker says that before his strokes he was unable to do lawn mowing and gardening because of breathlessness. I discount his evidence that this commenced in December 2005 because, although he consulted his general practitioner for other things in December of that year, he did not complain of breathlessness. I accept that from the time of the pleural effusions in February 2006, Mr Bakker remained unable to do the lawn mowing and gardening because of his asbestos-related disease.

39. Although Mrs Bakker mowed the lawn and also did the gardening before his stroke, she is now too busy caring for his personal needs to mow the lawn, and they pay $30 each fortnight for this service. The gardening occupies Mrs Bakker or their son Adrian for one hour each week.

40. I allow $45 per week for the period 22 February 2006 to 5 August 2006, rounded up to 23 weeks: $1035.

Past medical expenses

41. These are agreed in the sum of $15,224 in respect of hospital treatment and $80.20 in respect of two chest x-rays, a total of $15,304.20.

Future medical expenses

42. Although Mr Bakker has not incurred any medical expenses for the last two years, Dr McEvoy and Dr Allen agree that he will in future require recurrent periods of hospitalisation. Dr McEvoy says that the total costs of medical care for Mr Bakker during the remainder of his lifetime may be between $100,000 and $200,000, and that the cost attributable to Mr Bakker's asbestos related pleural disease could be $25000-$50000. Dr Allen agreed that this is a fairly reasonable estimate "in a very complex clinical setting". I allow $40,000.

Summary of damages

43. General damages; $115,000

Interest on general damages; $3000

Griffiths v Kerkemeyer; $1035

Past medical expenses; $15,304.20

Future medical expenses; $40,000

Total: $174,339.20

44. Mr Bakker's damages are divisible and a separate judgment must be entered against each defendant. WorkCover Queensland alone is liable for the whole of the damages. Judgment will be entered against WorkCover Queensland, with liberty to all defendants to apply for orders apportioning liability.

Orders

45. Judgment for the plaintiff in the sum of $174,339.20 against WorkCover Queensland.

WorkCover Queensland to pay the plaintiff’s costs.

Parties to bring in short minutes of orders for further judgments.

Mr G F Little SC with Mr S Tzouganatos instructed by Turner Freeman appeared for the plaintiff

Mr G M Watson SC instructed by Fergusons Lawyers, Holman Webb Lawyers, Middletons and Leigh Virtue and Associates appeared for the defendants